At Law and Liberty, John O. McGnnis: James Bradley Thayer and Judicial Restraint. From the introduction:
One of the most important ongoing debates in constitutional law is the degree of deference that judges should accord legislation in assessing its constitutionality. And the most famous article arguing for deference remains “The Origin and Scope of American Constitutional Law,” written by James Bradley Thayer. Indeed, as suggested by the fact that it is still being discussed 126 years after it was written, it has a strong claim to being the most famous article ever about American constitutional law. Given how important originalism has become in constitutional interpretation, it is not surprising that today that scholars, including my Northwestern colleague Steven Calabresi, are evaluating whether Thayer’s renowned article reflects an originalist view.
Matthew Franck, one of the most sophisticated advocates of judicial restraint, has made the case for this article’s originalism in a fascinating American Political Thought essay, “James Bradley Thayer and the Presumption of Constitutionality: A Strange Posthumous Career.” He argues that Thayer’s claims have been unfairly distorted by subsequent scholars, particularly those who favor judicial engagement—the opposite of deference. While there is much that is extremely valuable in the article, I do not believe it succeeds in defending Thayer’s article as originalist.
There are at least four reasons not to count Thayer in the originalist camp: First, some of Thayer’s key arguments are consequentialist, not interpretive. Second, Thayer does not investigate fully what the founders thought about judicial review, and that allows him to exaggerate deference into a “beyond a reasonable doubt standard” which exceeds that which can be fairly gleaned from the record. Third, without providing any support in the Founding, Thayer argues that judges should be more deferential to federal than state legislation. Finally, Thayer assumes that much of the Constitution is unclear. As a result, there is a lot of room for deference to operate. But here he follows a jurisprudential understanding that developed after the Founding.
Posted at 6:28 AM